Waliallah S/O. Allabaksh Yadwad, Vs Karnataka State Board of Auqaf

WALIALLAH S/O. ALLABAKSH YADWAD, AGE: 68 YEARS, OCC: PENSIONER, EX-SECRETARY OF GAIBUSHA VALI, MAKAN (SUNNI) WAKF, R/O. 57, GOULI GALLI, BANDIWAD BASE, HUBBALLI-580020.

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench

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(BY SRI. V. M. SHEELVANT, ADVOCATE)

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…APPELLANT

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AND:

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KARNATAKA STATE BOARD OF AUQAF, DARUL AUQAF, CUNNINGHAM ROAD, BENGALURU-560052, REPRESENTED BY ITS CHAIRMAN, ANWAR BASHA.

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HC-KAR

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THE CHIEF EXECUTIVE OFFICER, KARNATAKA STATE BOARD OF AUQAF, DARUL AUQAF NO.6, CUNNINGHAM ROAD, BENGALURU-560052.

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GAIBUSHA VALI MAKAN (SUNNI), BANDIWAD BASE, HUBBALLI, DHARWAD DISTRICT BY ITS ADMINISTRATOR, SHRI SIRAJAHMED M. HUDADMANI, PROJECT CO-ORDINATOR RMSA, DDPI OFFICE, DHARWAD-580002.

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…RESPONDENTS

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(BY MR. B. MUHAMMED ALI, ADV. FOR R1 AND R2; MR. SADIQ N. GOODWALA, ADV. FOR R3)

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THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORAL ORDER DATED 04.09.2024 PASSED BY LEARNED SINGLE JUDGE IN W.P. NO.104387/2024 AND QUASH THE ORDER DATED 02/07/2024 PASSED BY THE WAKF BOARD, HOLDING THAT THE SAME IS BAD IN LAW BY ALLOWING THE WRIT APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV)

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The present appeal has been filed seeking to set aside the

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order of the learned Single Judge passed in W.P.No.104387/2024 on 04.09.2024.

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The challenge before the learned Single Judge was as regards the order at Annexure-J in the writ proceedings which was the order dated 02.07.2024 whereby the Karnataka State Board of AUQAF, Bengaluru accorded approval for amendment of jurisdiction in the Scheme of Administration for the management of Gaibushavali Makan (Sunni), Bhandiwadbase, Hubballi,

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Dharwad District as mentioned below:

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Sl. No.	Existing Jurisdiction		Sl. No.	Jurisdiction to be amended
01	East: Western side Cross of Bhandiwad Hubballi. West: Eastern side Cross of Gouli Hubballi.	of 1^st Base, of 3^rd Galli,	01	Makandar Galli Start to End Patthar Phoda Galli Start to End Bhandiwad Base, Hubballi Town of Hubballi Taluka Dharwad District.
	North: Raod (upto Fort)	New
	South: Road (up Vithoba Galli)	to

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HC-KAR

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The validity of amendment of such jurisdiction by virtue of Annexure-J was the subject matter of attack in the writ proceedings. The learned Single Judge by a detailed order after considering all aspects has rejected the writ petition while relegating the petitioner to approach the appropriate forum i.e., the Wakf Tribunal, for redressal of grievance while keeping open all contentions.

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Learned counsel appearing for the petitioner Sri V.M.Sheelvant would contend that there are allegations of forgery which on the face of it is evident and accordingly matter ought to have been entertained by the writ Court.

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After hearing the matter for sometime and having perused the order of the learned Single Judge, it is noticed that the learned Single Judge has addressed the contention of the proper remedy in terms of the observation made at para 8 to 11. The said observations are extracted below:

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“8. Now the question is not with regard to any Wakf property dispute. It is a dispute with regard to the very Wakf is concerned. In the case on hand, the decision of the Wakf Board is challenged before this

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HC-KAR

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Court with regard to the merging of two Wakf Boards. When such being the case and when the dispute is with regard to the Wakf and the same is also in respect of the administration is concerned and also when the petitioner’s counsel vehemently contend that the documents are forged and decision is taken, if there is any such forging of the documents, the same can be agitated before the Wakf Tribunal. When the jurisdiction to decide any dispute with regard to the Wakf or Wakf property is given to the Wakf Tribunal, the very contention of the petitioner that this Court can decide the issue in nature by exercising the power under Article 226 of the Constitution of India cannot be accepted. No doubt the judgment of the Calcutta High Court is with regard to a decision taken by the Wakf Tribunal with regard to the supervisory jurisdiction is concerned, but here is a case of decision is not taken by the Wakf Tribunal, but the decision is taken by the respondents by merging of two Wakf Boards and the Wakf Tribunal has not exercised such powers.

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9. No doubt the counsel for the petitioner has relied upon the judgment of the Hon’ble Apex Court in the case of Ramesh Gobindram (Dead) through LRS Vs. Surga Humayun Mirza Wakf reported in (2010) 8 SCC 726, wherein also a discussion was made with regard to the Section 6(1), (5), 7(1), (5), 85, 83, 33, 35, 47, 48, 51, 54, 61, 64, 67, 72 and 73 of the Wakf

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HC-KAR

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Act, with regard to the exercising of jurisdiction of Wakf Tribunal Vis-à-vis Civil Court, matters in respect of which jurisdiction of civil court barred, with regard to the Eviction Suit against the tenants of Wakf property. Here is a case of questioning the order passed by the respondents, merging of the two Wakf and the very contention of the petitioner’s counsel is that the respondents are not having any authority to pass such an order. The said ground also can be urged before the Wakf Tribunal when the dispute is with regard to the Wakf. The Hon’ble Apex Court in a case of Anis Fatma Begum’s case (supra) categorically discussed in paragraph No.14 of the judgment with regard to the dispute of Wakf or Wakf property and held that the same can be urged before the Wakf Tribunal.

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10. When such being the case, the question raised by the respondents is that this Court cannot decide the issue of the similar nature, unless the petitioner approaches the Wakf Tribunal, with regard to the dispute of Wakf. Hence there is force in the contention of the respondents that this Court has no jurisdiction to entertain the writ petition and the same has to be urged before the Wakf Tribunal.

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11. Hence, I am of the opinion that this Court has no jurisdiction to entertain the writ petition when the Wakf Tribunal is constituted to decide the dispute with regard to the Wakf is concerned. Hence the writ petition is not maintainable as this Court has

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HC-KAR

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no jurisdiction to entertain the writ petition. The petitioner can urge the very same ground before the Wakf Tribunal.”

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We find that the approach of the learned Single Judge does not call for interference. The appellant requires to be relegated to avail of the substantive remedy. Taking note that the arguments advanced relating to amendment of jurisdiction has been raised, all contentions including such contention as well as contentions raised to assail Annexure-J are kept open to be agitated in substantive proceedings before the Waqf Tribunal. If proceedings are filed before the Waqf Tribunal within a period of two weeks from today, the same to be taken on board by the Tribunal without raising any objection as regards delay. The application seeking interim relief, if filed along with the proceedings to be taken up before the Wakf Tribunal, necessary orders be passed within ten days thereafter.

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